Aliens in their own land. 'Alien' and the rule of law in colonial and post-federation Australia
Date
2015
Authors
Prince, Peter Herman
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Abstract
This thesis argues that the ‘rule of law’ was not followed in
colonial and post-federation Australia in relation to a
fundamental principle of the common law. According to the rule in
Calvin’s Case (1608), no person born as a ‘subject’ in any
part of the King’s dominions could be an ‘alien’. This was
the legal position in Australia from the reception of English law
until well after federation.
In colonial and post-federation Australia the racial meaning of
‘alien’ was consistently used in political and legal contexts
instead of its proper legal meaning. In legislation and
parliamentary debates, cases and prosecutions, inter-colonial
conferences and conventions it was employed to refer not merely
to those who were ‘aliens’ under the common law but also to
people regarded as ‘aliens’ in the broader or racial sense of
the word, especially those of non-European background. Chinese
and Indian settlers, Pacific islanders and even indigenous
Australians were treated as ‘aliens’ in Australia even if
under British law they were actually ‘subjects’ of the Crown
and not ‘aliens’ at all in the accepted legal sense.
In the 1820s and 1830s the New South Wales Supreme Court thought
it inconceivable that ‘barbarous’ indigenous inhabitants
could ‘owe fealty’ or allegiance to the British Crown,
considering their legal position analogous to that of
‘foreigners’ or ‘strangers’. In debates on exclusionary
legislation in the 1870s and 1880s, parliamentarians in the
Australian colonies portrayed all Chinese settlers as
‘aliens’, despite acknowledging that many came from Hong
Kong, the Straits Settlements or other British possessions.
Immigrants from British India were generally treated the same
way. Delegates to Australia’s constitutional conventions in the
1890s, including prominent legal figures, repeated this mistake.
And in the 1900s Pacific islanders born in Australia as British
subjects were deported as ‘aliens’ with the approval of the
Australian High Court. The misuse of ‘alien’ in this case
contributed to a defective judgment still cited today in support
of the Commonwealth’s claims to extensive exclusionary power.
Between federation and the Second World War, Queensland’s
dictation test legislation and industrial awards regulating
various occupations provide many examples of the misuse and
manipulation of the term ‘alien’ in a legal context. In
prosecutions under these laws the word was used as a weapon
against non-Europeans whether they were ‘aliens’ under the
law or not.
Commentators both in the early years of federation and in more
recent times have failed to identify the misuse of ‘alien’–
and have made the same error themselves. This mistake is critical
because of the continued force of the term in Australian law. The
Commonwealth’s sweeping power to define who shall be citizens
of Australia and to exclude, detain indefinitely without trial
and deport ‘aliens’ is still justified by reference to
colonial and post-federation cases and constitutional convention
debates where ‘alien’ was incorrectly used in its racial
sense contrary to the rule of law.
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Keywords
alien, alien races, coloured aliens, colored aliens, Constitution section 51(xix), section 51(xxvi), section 51(xxvii), rule of law, British subject, nationality, legal status, indigenous Australians, Chinese Australians, British Indians, Pacific islanders, dictation test legislation, convention debates, Samuel Griffith, Henry Parkes, Lowe Kong Meng, See Chin, naturalisation, naturalization, Toy v Musgrove, Musgrove v Chung Teong Toy, Robtelmes v Brenan, Sugar Cultivation Act 1913, Station Hands Award 1917, Sugar Field and Sugar Mill Workers and Cooks Award, Leases to Aliens Restriction Act 1912, Banana Industry Preservation Act 1921, Pacific Island Labourers Act 1901, Northern Territory Mining Act 1903, Firearms and Guns Act 1931
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